In re Lepley's Estate
| Decision Date | 06 February 1945 |
| Docket Number | 46650. |
| Citation | 17 N.W.2d 526,235 Iowa 664 |
| Parties | In re LEPLEY'S ESTATE. LEPLEY et al. v. BOGUE et al. |
| Court | Iowa Supreme Court |
R. R. Bateson, of Eldora, for executrix-appellant Jessie L. Lepley.
B B. Burnquist, of Fort Dodge, for appellants Jessie E. Lepley Julia Lepley Smith and Lucile Smith.
Lundy Butler & Lundy, of Eldora, for appellees.
The will of Peter T. Lepley, deceased, which the trial court was asked to construe, contained the following clauses:
The will was executed on February 5, 1934, and on November 16, 1935, the northwest quarter of section 29, part of the land described in clause IV of the will, was sold by decedent. Decedent died March 23, 1943. The remaining farm land was mortgaged to the Federal Land Bank of Omaha and its commissioner as security for notes of $5,000 and $2,500 respectively
The executrix of the above will, Jessie E. Lepley, as executrix, and in her individual capacity, and Julia Lepley Smith and Lucile Smith sought, by appropriate pleadings, a construction that the will required the subjection of the real estate described in clause IV to the payment of the mortgage against the realty. Frances Bogue, Clare Lepley, and Willet Lepley, children of the decedent by a former marriage, by proper pleadings, asserted the will was not ambiguous; that the bequest of personalty was a general bequest and that the debts secured by the mortgages on the land specifically devised in clause IV must be satisfied out of the personalty rather than from the real estate.
By agreement the entire controversy was tried in equity and the trial court rendered a decree in favor of Frances Bogue, Clare Lepley, and Willet Lepley, hereinafter called the defendants; the decree providing for payment of the mortgage debts from the personalty. The executrix and those who joined with her, hereinafter called the plaintiffs, appeal.
It is stipulated that the personal property in the estate was sufficient to pay all debts against the estate including the mortgage indebtedness which at the time of decedent's death was in the total sum of $6,040.44. The widow elected to take under the will and she and decedent's lawyer who drew the will testified at the trial with respect to matters that might explain the testator's intent at the time the will was executed. This evidence tended to show an intention on the part of testator or refinance his obligations into long term loans before executing his will so that 'they (the debts) won't hurt anybody.' There was also testimony of statements by decedent, made about the time of the execution of the will, that he wanted to be sure his wife had all of his personal property. The record further shows that when he executed the will he had but a small amount of personal property, and mortgage obligations totaling $20,000, and a cottage at Okoboji which he later sold for $1,100. The sale of the northwest quarter of section 29 netted the decedent $7,000 more than the mortgage lien against it or more than enough to pay the mortgage encumbrance on the remaining land at the time of his death.
I. Defendants do not argue the proposition as to whether the bequest to the widow in clause II of the will of 'all of the personal property * * * of which I die seized * * *' is general or specific. We consider the question basic for the determination of the controversy.
We said in Re Estate of Hartman, 233 Iowa 405, 9 N.W.2d 359, 361:
Authorities from other jurisdictions seem to be uniform in holding that a bequest of all of testator's personal property is general. A number of such authorities are collected in the annotation in 88 A.L.R. 553, and the rule as to personal property is thus stated (loc. cit. 554): 'The rule sanctioned, seemingly without dissent, by the cases, is that, in the absence of a clearly expressed intention of the testator to the contrary, a bequest of all of the testator's personal property, an aliquot portion of it, the remainder of the personal property, or any bequest in similar general terms, is a general and not a specific legacy.'
It is our conclusion that the bequest in clause II of the will of all the testator's personal property to the widow was a general bequest. Of course the devises in clauses III and IV of specifically described parcels of realty were specific. The question then is whether the personal estate which was the subject of a general bequest must bear the burden of all the debts including the mortgage indebtedness covering real estate which was the subject of a specific devise, or should the real estate bear the burden of paying the mortgage indebtedness against it.
II. Plaintiffs point to the fact that no claims were filed for these mortgage debts and they contend that under the statutes (sections 11969, 11970 and 11972, Code of 1939) providing for the filing and payment of claims, the defendants are barred from enforcing their demands that these debts be paid. The contention is answered by our holding in Re Estate of Brackey, 166 Iowa, 109, 147 N.W. 188, 191, where we held such statutes do not govern and that they relate 'only to the rights of a creditor seeking to enforce his claim against the estate in the hands of the executor.' See also Toner v. Collins, 67 Iowa 369, 25 N.W. 287, 56 Am.Rep. 346, and Ganoe v. Swisher, 229 Iowa 130, 294 N.W. 235.
III. Plaintiffs' next contention is that under section 11977 Code of 1939, the executrix is not obliged to pay this...
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